What’s Brewing at the Oregon Legislature in Employment Law?
Although it is not meeting as often as it did in pre-COVID times, the Oregon Legislature has been busy evaluating several bills. Some of these bills, if passed, would make fundamental changes to employment law for years to come. Keep reading for a preview of what the future may hold.
Senate Bill 716 would require retail, food service and hospitality businesses with 500 or more employees worldwide to grant requests for scheduling changes to accommodate employee childcare needs. Currently, these types of businesses are subject to Oregon’s predictive scheduling law, which as of July 1, 2020 require a subject employer to provide at least 14 days’ notice of a workers’ schedule. Passage of this bill would place employers in a difficult position as they would invariably be required to change another employee’s schedule to accommodate the first employee. In so doing, employers would be subject to the penalty wage provisions of the statute. Negotiations are underway to obtain an exception to the penalty wage provisions of the statute. Check back with us for an update on these negotiations.
Another bill that could have an impact on business needs and operations is Senate Bill 569. The bill would prohibit employers from requiring driver’s licenses from potential employees when driving is not an essential job function of their position. The bill was brought forward because some employers are requiring driver’s licenses of employees whose job duties do not include driving, particularly individuals with disabilities. Whether this bill passes or not, it is an important reminder to ensure requirements for employment are narrowly tailored and aligned with business necessity. There is little room for deviation from these general principles under current law. If you have concerns about whether your requirements for potential employees are in compliance with the law, please contact us for assessment.
By far the most potentially impactful bill being considered by the legislature in this session is Senate Bill 477. This bill would significantly change the playing field for harassment and hostile work environment claims. Under current law, to establish a claim of a hostile work environment, a plaintiff must establish the conduct is 1) unwelcome 2) subjectively and objectively offensive and 3) severe or pervasive. See Galdamez v. Potter, 415 F3d 1015, 1023 (9th Cir 2005). SB 477 would eliminate the “severe and pervasive” standard in these types of claims, thereby removing one significant requirement for employees.
Additionally, the bill would remove a potential defense to these claims for employer. Pursuant to the Faragher v. City of Boca Raton decision, an employer can avoid liability for a harassment or hostile work environment claim by asserting an affirmative defense that plaintiff failed to follow internal policies or procedures to report violations. See Faragher v. City of Boca Raton, 524 US 775, 807, 118 S Ct 2275, 141 L Ed2d 662 (1998). With passage of SB 477, this defense would no longer be available to employers.
Finally, the bill would remove the disparate impact element. Under current law, a plaintiff must show they were treated less favorably than a similarly situated employee who is not part of the same protected class. SB 477 would remove this as a requirement.
It is impossible to overstate the impact of this bill on employers. By removing requirements for employees and removing defenses for employers, SB 477 would make it much easier for a disgruntled employee to file suit. Although this bill has not passed, it provides an opportunity to revisit policies, practices and procedures to ensure compliance with the law. Take this opportunity to communicate with your managers and employees regarding zero-tolerance for work-place harassment. You should also evaluate your reporting procedures to ensure you can address any potential issues before they become lawsuits. If you have any questions regarding proactive measures, please do not hesitate to contact me at or 503-595-6115.
Posted by Adriana Ortega.
